Some details unclear in Cuomo's plan for 10,000 pardons

ALBANY— Following Gov. Andrew Cuomo’s announcement that he would be “conditionally pardoning” 10,000 individuals who committed nonviolent felonies or misdemeanors in their teens, there’s no consensus among legal experts on how the governor’s program will be implemented or how many people stand to be affected by it.

The number of people who would benefit from the program depends on how the Cuomo administration handles applications and how many people apply, said Jocelyn Simonson, an assistant professor at Brooklyn Law School.

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“Cuomo’s initiative could go a number of ways,” she said.

The roughly 10,000 people who are eligible for the program have to apply for a pardon request, a one-page application sent to the state’s Department of Corrections and Community Supervision. It is then up to agency staff to make a recommendation for the governor to grant a pardon.

“Although it’s a promising sign, we also have to wait to see how Cuomo exercises it once he gets the applications,” Simonson said.

The Cuomo administration said the program does not apply to individuals who were granted youthful offender status as teenagers, which results in records being automatically sealed by courts.

New York and North Carolina are the only remaining states where teens as young as 16 can be tried as adults.

Under the governor's plan, an individual must have lived a crime-free life for the last decade in order to be eligible for a pardon.

”My feeling is, if you made a mistake when you’re 16 or 17 — and I don’t know a 16 or 17 year old who has not made a mistake — but if you made a mistake that actually led to a conviction of a crime, but you didn’t commit another crime in 10 years, then we will conditionally pardon you and let you get on with your life and remove the obstacle,” Cuomo told WNYC’s Brian Lehrer on Monday. “If you committed an additional crime, then we will reverse the pardon and you’ll have to disclose both. But I think it’s the right balance.”

Jim Cohen, a professor at Fordham Law School, is skeptical of the governor’s plan, saying that it won’t affect as many people as the Cuomo administration says.

“I’m sure there are some people it would cover, don’t get me wrong. Some people fall through the cracks … I’m not saying it will affect nobody," he said, but it will not affect "a whole lot of people."

Cuomo, Cohen said, was grasping at “the low-hanging fruit on a short tree” when it came to criminal justice reforms, saying that granting pardons to people who were convicted as teenagers and reforming the solitary confinement system in prisons is nothing groundbreaking.

“This sounds like the classic politician’s action,” he said. “It’s just talk.”

This past legislative session Cuomo was met with resistance in the Republican-led Senate on raising the age of criminal responsibility. He said he would try to raise the age to 18 via an executive order, but state agencies first have to figure out where to house minors.

Those who are pardoned will still have to check off a box indicating that they were convicted of a crime when applying for a job or college, but the individuals will have documentation from the governor’s office showing that they have been pardoned.

When asked about banning the box that asks about prior convictions, Cuomo said that went too far.

“The question here is balance. You want to help a person get on with their life. But you also understand society and some individuals' right to protect themselves and have knowledge about an employee and I think this hits the balance,” Cuomo said.

The true effectiveness of Cuomo’s proposal can only be measured further down the line, Simonson said.

“We have to take it for face value right now but the devil is going to be in the details,” she said in a phone interview. “Although it’s an impressive announcement, there’s a lot more to be revealed about how effective it will be.”

Alafair Burke, a criminal law and criminal procedure professor at Hofstra Law, said Cuomo’s move is part of a larger trend to mitigate problems those in the criminal justice system may have down the road.

“I would see it as a larger trend where people are starting to realize that as much as we’ve emphasized over the years the kind of zero tolerance approach to criminal prosecutions, the idea of early intervention and punishing small crimes, that there are collateral consequences down the road,” Burke said. “You want people to be employable, you want people to be part of the culture instead of outside of it. This seems to be as part of that larger picture of trying to be smart about law enforcement and still be aggressive about intervention but also trying to be a little more compassionate and allowing people to continue to live their lives after being part of the criminal justice system.”

“We’re moving people to alternatives to incarceration at the front end of the system when it’s appropriate. Diversion, when it’s appropriate,” Cuomo said Monday. “And for those people who you do have to incarcerate, to the extent the system allows, make it a rehabilitative mechanism. The point is re-entry and getting people out of the institution and back into society at the appropriate time and this is totally consistent with that.”

It’s unclear if the names of those granted a pardon will be made public. Many individuals who committed crimes as a minor have had their records sealed, and if their pardons are subject to the Freedom of Information Law, obtaining one could publicize actions they had already left in their past.

State Committee on Open Government executive director Robert Freeman pointed to the 1989 case Rold v. Cuomo, the respondent being the current governor's father, the late Mario Cuomo. In that case, a judge found that records of clemency actions were subject to FOIL since the “clemency power of the Chief Executive is an extraordinary one in that its exercise results in a modification or voiding of a lawful determination of the judicial process … The people of this state thus have a constitutional right to know when a conviction and sentence lawfully imposed within the judicial process is vitiated by executive action.”

But Freeman cautioned that different conclusions might be made in cases involving non-incarcerated juveniles, and the issue of privacy might weigh more heavily.

“It’s a curious case, to say the least,” he said. “This seems to be something of an unprecedented situation. I have never read about anything like this before.”

The Cuomo administration said that it will refine the process that will be ultimately implemented, looking at ways to ensure privacy so individuals who are pardoned aren’t compromised from re-entering society.